Why the Senate likely won't pass gun bills on terror watch lists

Legislative discussion on limiting access to firearms by those suspected of terrorism has hit a standstill over issues of executive vs. judicial power and due process. 

Following the revelation that Orlando shooter Omar Mateen had been on an FBI terrorism watch list as recently as two years before the shooting at a gay nightclub that left 49 people dead, the national gun control discussion has shifted toward reducing access to guns for suspected terrorists. Efforts to do so have stalled in the Senate, however. 

The terror watch list discussion is in the spotlight after Sen. Chris Murphy (D) of Connecticut led an almost 15-hour filibuster from Wednesday morning to early Thursday morning, trying to prevent those on the terror watch list from obtaining firearms, and to expand background checks. In a statement, he said those were "the two least controversial provisions possible that will still do a world of good." 

But Democrats and Republicans have reached a standstill as they face off on the power of the executive branch versus the judiciary branch and whether the legislation would subvert due process of terror suspects. The ability to pass legislation on the terror watch list may suggest whether passing legislation on other aspects of gun safety, such as the expanded background checks, will be possible in today's political environment. 

Sen. Diane Feinstein (D) of California has proposed legislation that would give the Justice Department, specifically the US Attorney General, the power to prevent suspected terrorists from buying weapons, whether or not their names appeared on the government's official lists, as Politico reported. A proposal from Sen. John Cornyn (R) of Texas, meanwhile, takes the issue to the judiciary, giving a judge three days after the attempted sale to prove there was probable cause to deny the sale.

Nicholas Johnson, a professor at the Fordham University School of Law in New York, tells The Christian Science Monitor that the argument signifies a shift in thought from both sides of the aisle. In debates about NSA surveillance and the USA PATRIOT Act, Republicans had been arguing for widening executive branch discretion, while Democrats had been requesting judicial involvement.

"Things are a little flipped here, where you have the Democrats in this context making what would be a Republican argument, and the Republicans saying no, you can't give law enforcement this kind of discretion, you need to have a judge make this kind of determination," he says. 

Compromise discussions fell apart on Wednesday, and votes on the two bills will likely be voted on Monday, June 20. Neither is likely to pass, McClatchy DC reported, furthering Congresses' gun control inaction. Why haven't both sides of the aisle been able to reach common ground on an issue all constituencies want to address? 

A tale of two bills

The lead shooter in the 2015 mass shooting in San Bernardino, Calif., an attack which killed 14 people and seriously injured 22, had also been investigated by the FBI, a revelation that led lawmakers to first raise the topic in December. Mr. Mateen, the Florida shooter, was on a FBI terrorism watch list until 2014, when the FBI ruled he was not a credible threat, according to The Washington Post. 

The NRA supports Senator Cornyn's version of the bill. Chris Cox, the executive director of the NRA's Institute for Legislative Action, said in a statement that gun sales to those on the terror watch list should be delayed while the FBI investigates. If the FBI uncovers evidence of terrorist activity, they should be allowed to block the sale and arrest the terrorist, he said. 

"The NRA believes that terrorists should not be allowed to purchase or possess firearms, period," Mr. Cox stated. "At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watch list to be removed."

Both Senator Feinstein and Cornyn proposed similar pieces of legislation in December that failed: Feinstein's bill was defeated 45 to 54, and Cornyn's failed to pass with a 55 to 45 vote. The amendments were being added to an Obamacare repeal bill and needed 60 votes to pass. 

Sarah Trumble, a senior policy counsel at Third Way, which describes itself as a centrist think tank based in Washington, D.C., tells the Monitor that Feinstein's version of the bill would deny the sale of the gun a to suspected terrorist, who could then appeal the decision.

Cornyn's version, she says, forces the courts to find just cause before the denial of the sale. She argues that Cornyn’s version of the bill is "completely impracticable" as it is very difficult to prove the standard it sets, and is not something the court system is capable of doing or something federal prosecutors have the time to do.   

"It's not a solution to the problem, and doesn't lead the solution to the problem," she says. "It's not a step in the right direction, it's wallpapering over the problem with a fake solution." 

Professor Johnson says it is clear why legislators would want to use the terror watch lists to keep guns away from those listed. From a civil liberties standpoint, however, using the lists to deny Second Amendment rights could be problematic.

"The terror watch list and the no-fly list are some sort of secretive process that you really can't do much about ... and I guess necessarily so, since there are secret evaluations that go on to put people on it or take people off it," he said.

Since people on the watch lists haven't been arrested or accused of anything, Johnson argues, using the list to deny people firearms could subvert due process.

"You are essentially treating people the same way you would treat someone who's actually convicted of crime," he said.

Due process is adhered to in Feinstein's bill, Trumble says, since there is an appeal process for anyone denied a sale, and they can take it to court. 

Process points toward progress

Trumble says she anticipates the voting on Feinstein's bill will be close. She said the upcoming votes signify progress in the debate over gun legislation, and she believes the aftermath of the Orlando shooting may have a different political result than the previous shootings which led to increased discussions but no passed legislation.

"In the past, it's felt like doing something on guns was a moral imperative, but now it also feels like a political one because we've seen so many mass shootings," she said. "Another part of it is we're (now) seeing the intersection between gun violence and terrorism." 

She says that votes are happening is symbolic of progress on the issue. 

"Getting to a point where we're acknowledging gun laws are something we need to be looking and taking votes on is very promising," she says. "In the future hopefully we wont need another largest mass shooting in history to get us to this step."